VIC Owning property both as a tenant in common and as a joint proprietor

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Harry De Elle

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11 February 2017
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Is anyone aware if an owner can own 1/4 share of a property as a tenant in common whilst being a joint proprietor in the 3/4 balance share with 2 other additional co owners?
I.E: owner A owns 25% of the property whilst the remaining 75% of the property is jointly owned by owner A, B & C.
 

Rod

Lawyer
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27 May 2014
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Yes, assuming the property is in Vic. I don't know about other states.
 

Tim W

Lawyer
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28 April 2014
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Let me see if I understand this...

The land is held by two entities, each a joint tenant.
A is one, and (B+C) is the other?
 

Harry De Elle

Well-Known Member
11 February 2017
59
3
199
Hi Tim,
Owner A is one entity which owns 25% share as a tenant in common, the remaining 75% share is owned by A,B and C as joint proprietors.
 

Tim W

Lawyer
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< nods > Got it.

What is the (proposed?) transaction that has given rise to your question? A
And what do the title documents say?

I ask because, as a lawyer in NSW, this seems really unusual
(noting what @Rod says about it being possible in Victoria)
 

Harry De Elle

Well-Known Member
11 February 2017
59
3
199
Thank you for your question Tim,
The current title document says:
REGISTERED PROPRIETOR

Estate Fee simple
TENANTS IN COMMON
as to 3 of a total of 4 equal undivided shares
Joint Proprietors
B.....
C....
A..... all of XX Smith Street Smith VIC 1234

as to 1 of a total of 4 equal undivided shares
Sole Proprietor
A .....of XX Smith Street Smith VIC 1234

Originally Parties A,B,C and D (B & C are parents of siblings, A, D and E ) purchased a property as joint tenants with a bank loan.
Party E (sibling) was a minor at the time of purchase.
A mortgage was registered on the property. E was not a registered proprietor.

An agreement was made between A,B,C,D and E to the effect that A,B,C and D would hold E's share in trust and that neither A,D or E jointly or severally take any steps to sell or enable the sale of their interest without prior consent of parents.

Many years later D went bankrupt.
The trustee in bankruptcy placed a caveat on the property looking to sell it to recover D's interest for their creditors.
During negotiations B & C could not assist with any financial contributions towards settlement as they were pensioners with little savings.
E had accumulated debts and refused to assist on the basis that if he was to publicly declare on title that he had an interest in the property creditors would want to realise his interest as well.

It was negotiated that A settle D's debt for 25% share of the property.

Entity A wants B & C to buy out their interest in the property which on title is 50% or to sell the property.
E claims that in equity he has a a claim of 25% of the 3/4 undivided share. (i.e. 18.75% )

B, C and E argue that the agreement is still binding and no child can sell any interest what so ever until both parents die.

I am of the opinion that the agreement has been voided by the bankruptcy of entity D.
Entity E may have been entitled to 20% interest at some time in the past but has revoked that interest by his words and conduct.

Alternatively at a minimum A is entitled to request a sale and realise 25 % if not 43.75% of the property.
 

Rod

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A lawyer is needed to untangled the agreements made and or altered since the original agreement was made.

Looks like a mix of insolvency/property and equity law. Messy.

Our estate/property lawyers can help you.
 
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